14-35RESOLUTION NO. 14 -35
A RESOLUTION OF THE CITY OF CLEARWATER,
FLORIDA APPROVING A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF CLEARWATER AND BAYWAY
HOTEL HOLDINGS, LLC; PROVIDING AN EFFECTIVE
DATE.
WHEREAS, the City of Clearwater is desirous of entering into a development
agreement with BAYWAY HOTEL HOLDINGS, LLC ; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF CLEARWATER, FLORIDA:
Section1. The Development Agreement between the City of Clearwater and
BAYWAY HOTEL HOLDINGS, LLC, a copy of which is attached as Exhibit "A," is
hereby approved.
Section 2. This resolution shall take effect immediately upon adoption.
Section 3. The City Clerk is directed to submit a recorded copy of the
Development Agreement to the state land planning agency no later than fourteen (14)
days after the Development Agreement is recorded.
PASSED AND ADOPTED this 20th day of November , 2014.
proved . j • form:
Camilo A. Soto
City Attorney
cpo ri2 (\Ccf. \kof
George N. Cretekos
Mayor
Attest:
�l1f�ti�Ct�Z�
Rosemarie Call
City Clerk
Resolution No. 14 -35
HOTEL DENSITY RESERVE DEVELOPMENT AGREEMENT
THIS HOTEL DENSITY RESERVE DEVELOPMENT AGREEMENT
( "Agreement ") is dated the day of November, 2014, and entered into between
Bayway Hotel Holdings LLC, a Florida limited liability company ( "Developer "), its
successors and assigns, and the CITY OF CLEARWATER, FLORIDA, a municipal
corporation of the State of Florida acting through its City Council, the governing body
thereof ( "City ").
RECITALS:
WHEREAS, one of the major elements of the City's revitalization effort is a
special area plan for the revitalization of Clearwater Beach adopted under the provisions
of the Florida Growth Management Act, Florida Statutes Chapter 163, Part II, and entitled
Beach by Design; and
WHEREAS, Florida Statutes Sections 163.3220 - 163.3243, the Florida Local
Government Development Agreement Act ( "Act "), authorize the City to enter into binding
development agreements with persons having a legal or equitable interest in real property
located within the corporate limits of the City; and
WHEREAS, under Section 163.3223 of the Act, the City has adopted Section
4 -606 of the City of Clearwater Community Development Code ( "Code "), establishing
procedures and requirements to consider and enter into development agreements; and
WHEREAS, Beach by Design proposed the development of hotel units to equalize
development opportunities on the beach and ensure Clearwater Beach remains a quality,
family resort community, and further provided for a limited pool of additional hotel units
( "Hotel Density Reserve ") to be made available for such mid -sized hotel projects; and
WHEREAS, the Developer owns 0.3504 acres of real property ( "Property") in the
corporate limits of the City, more particularly described on Exhibit "A" attached hereto
and incorporated herein; and
WHEREAS, the Developer desires to develop the Property to construct 32
overnight accommodation units, minimal meeting space for guest use, pool, lobby and
parking with 38 parking spaces, generally conforming to the architectural elevation
dimensions shown in composite Exhibit "B" (collectively, the improvements are the
"Project "); and
WHEREAS, the Property has not previously acquired density from the Destination
Resort Density Pool; and
WHEREAS, upon completion the planned resort will contain 32 overnight
accommodation units, which includes 15 units from the available Hotel Density Reserve
( "Reserve Units "); and
WHEREAS, the City has conducted such public hearings as are required by and in
accordance with Florida Statutes Section 163.3225, Code Sections 4 -206 and 4 -606, and
any other applicable law; and
WHEREAS, the City has determined that, as of the date of this Agreement, the
proposed project is consistent with the City's Comprehensive Plan and Land Development
Regulations; and
WHEREAS, at a duly noticed and convened public meeting on November 20,
2014, the City Council approved this Agreement and authorized and directed its execution
by the appropriate officials of the City; and
WHEREAS, approval of this Agreement is in the interests of the City in
furtherance of the City's goals of enhancing the viability of the resort community and in
furtherance of the objectives of Beach by Design; and
WHEREAS, Developer has approved this Agreement and has duly authorized
certain individuals to execute this Agreement on Developer's behalf
STATEMENT OF AGREEMENT
In consideration of and in reliance upon the premises, the mutual covenants
contained herein, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto intending to be legally bound and in
accordance with the Act and Code, agree as follows:
SECTION 1. Recitals. The above recitals are true and correct and are a part of
this Agreement.
SECTION 2. Incorporation of the Act. This Agreement is entered into in
compliance with and under the authority of the Code and the Act, the terms of which as of
the date of this Agreement are incorporated herein by this reference and made a part of
this Agreement. Words used in this Agreement without definition that are defined in the
Act shall have the same meaning in this Agreement as in the Act.
SECTION 3. Property Subject to this Agreement. The Property described in
Exhibit "A" is subject to this Agreement ( "Property ").
3.1 The Property currently has a land use designation of Resort Facilities High
(RFH) and is zoned Tourist (T) District.
3.2. The Property is owned in fee simple or under contract to be owned in fee
simple by the Developer.
3.3 The Property is generally located at 706 Bayway Blvd as further described
in Exhibit "A ".
SECTION 4. Scope of Project.
4.1 The Project shall consist of 32 overnight accommodation units. Of the 32
overnight accommodation units, 15 units shall be from the Hotel Density Reserve.
4.2 The Project shall include a minimum of 38 parking spaces, as defined in
the Code.
4.3 The design of the Project, as represented in Exhibit "B ", is consistent with
Beach by Design.
4.4 The density of the Project shall be 92 units per acre. In no instance shall
the density of a parcel of land exceed 150 units per acre. The height of the Project shall be
94 feet three inches as measured from Base Flood Elevation to highest architectural
feature, as defined in the Code. The maximum building heights of the various character
districts cannot be increased to accommodate hotel rooms allocated from the Hotel
Density Reserve.
SECTION 5. Effective Date/Duration of this Agreement.
5.1 This Agreement shall not be effective until this Agreement is properly
recorded in the public records of Pinellas County, Florida pursuant to Florida Statutes
Section 163.3239 and Code Section 4 -606.
5.2 Within fourteen (14) days after the City approves the execution of this
Agreement, the City shall record the Agreement with the Clerk of the Circuit Court for
Pinellas County. The Developer shall pay the cost of such recording. The City shall
submit to the Department of Economic Opportunity a copy of the recorded Agreement
within fourteen (14) days after the Agreement is recorded.
5.3 This Agreement shall continue in effect for ten (10) years unless earlier
terminated as set forth herein.
SECTION 6. Obligations under this Agreement.
6.1 Obligations of the Developer:
6.1.1 The obligations under this Agreement shall be binding upon and the
benefits of this Agreement shall inure to the Developer, its successors in interests or
assigns.
6.1.2 At the time of development of the Property, the Developer will
submit such applications and documentation as are required by law and shall comply with
the Code applicable at the time of building permit review.
Property:
6.1.3 The following restrictions shall apply to development of the
6.1.3.1 To retain the grant of Reserve Units provided for herein,
the Property and improvements located thereon shall be developed in
substantial conformance with the Conceptual Site Plan attached as Exhibit
"B ". Any modifications determined by the Planning and Development
Department Director as either inconsistent with attached Exhibit "B" or
constituting a substantial deviation from attached Exhibit `B" shall require
an amendment to this Agreement in accordance with the procedures of the
Act and the Code, as necessary and applicable. Any and all such approved
and adopted amendments shall be recorded in the public records of Pinellas
County, Florida.
6.1.3.2 The Developer shall obtain appropriate site plan approval
pursuant to a Level One or Level Two development application within one
(1) year from the effective date of this Agreement in accordance with the
provisions of the Code, and shall then obtain appropriate permits and
certificates of occupancy in accordance with the provisions of the Code.
Nothing herein shall restrict Developer from seeking an extension of site
plan approval or other development orders pursuant to the Code or state
law. In the event that work is not commenced pursuant to issued permits,
or certificates of occupancy are not timely issued, the City may deny future
development approvals and /or certificates of occupancy for the Project,
and may terminate this Agreement in accordance with Section 10.
6.1.3.3 The Developer shall execute, prior to commencement of
construction, a mandatory evacuation/closure covenant, substantially in the
form of Exhibit "C ", stating that the accommodation use will close as soon
as practicable after a hurricane watch that includes Clearwater Beach is
posted by the National Hurricane Center.
6.1.4 Covenant of Unified Use. Prior to the issuance of the first building permit
for the Project, the Developer hereby agrees to execute the covenant of unified use and
development for the Project Site providing that the Project Site shall be developed and
used as a single project, the form of which covenant is attached as Exhibit "D "; provided
however, that nothing shall preclude the Developer from selling all or a portion of the
Developer's Property in the event that Developer determines not to construct the Project.
It is understood and agreed that, in the event that the Developer enters into the anticipated
covenant of unified use and development, and the Developer elects not to construct the
Project and notifies the City of its election in writing, and, alternatively, as of the date of
expiration, termination or revocation no rights of Developer remain or will be exercised to
incorporate the Hotel Density Reserve Units into the Project, the City shall execute and
deliver to the Developer a termination of such covenant of unified use and development
suitable for recording in the Public Records of Pinellas County, Florida.
6.1.5 Return of Units to Reserve Pool. Any Reserve Units granted to Developer
not timely constructed in conjunction with the Project shall be returned to the Hotel
Density Reserve and be unavailable to Developer for use on the Project.
6.1.6 Transient Use. A reservation system shall be required as an integral part of
the hotel use and there shall be a lobby /front desk area that must be operated as a typical
lobby /front desk area for a hotel would be operated. Access to overnight accommodation
units must be provided through a lobby and internal corridor. All units in the hotel shall
be made available to the public as overnight transient hotel guests at all times through the
required hotel reservation system. Occupancy in the hotel is limited to a term of less than
one (1) month or thirty-one (31) consecutive days, whichever is less. Units in the hotel
shall not be used as a primary or permanent residence.
6.1.7 No Full Kitchens. No unit shall have a complete kitchen facility as that
term is used in the definition of "dwelling unit" in the Code.
6.1.8 Inspection of Records. Developer shall make available for inspection to
authorized representatives of the City its books and records pertaining to each Hotel
Density Reserve unit upon reasonable notice to confirm compliance with these regulations
as allowed by general law.
6.1.9 Compliance with Design Guidelines. The Developer agrees to comply
with the Design Guidelines as set forth in Section VII of Beach by Design.
6.1.10 Limitation on Amplified Music. Developer agrees that there shall be no
outdoor amplified music at the Project after 11:00 p.m. on Sunday through Thursday, or
after 12:00 midnight on Friday and Saturday.
6.2 Obligations of the City.
6.2.1 The City shall promptly process site and construction plan
applications for the Property that are consistent with the Comprehensive Plan and
the Concept Plan and that meet the requirements of the Code.
6.2.2 The final effectiveness of the applications referenced in Section
6.2.1 is subject to:
6.2.2.1 The provisions of Chapters 163 and 166, Florida Statutes, as
they may govern such amendments; and
6.2.2.2 The expiration of any appeal periods or, if an appeal is filed,
at the conclusion of such appeal.
6.2.3 Upon adoption of this Agreement, the Project shall receive fifteen
(15) units from the Hotel Density Reserve as defined in Beach by Design,
contingent upon the provisions of Section 6.1.5.
SECTION 7. Public Facilities to Service Development. The following public
facilities are presently available to the Property from the sources indicated below.
Development of the Property will be governed by the concurrency ordinance provisions
applicable at the time of development approval. The requirements for concurrency as set
forth in Article 4, Division 9, of the Code, have been satisfied.
7.1 Potable water is available from the City. The Developer shall be
responsible for all necessary main extensions and applicable connection fees.
7.2 Sewer service is currently provided by the City. The Developer shall be
responsible for all necessary main extensions and applicable connection fees.
7.3 Fire protection from the City.
7.4 Drainage facilities for the Property will be provided by the Developer at
the Developer's sole expense.
7.5 The Project shall comply with the Metropolitan Planning Organization's
[MPO] or its successor's countywide approach to the application of concurrency
management for transportation facilities, and the transportation analysis conducted for the
Project shall include the following:
• Recognition of standard data sources as established by the MPO;
• Identification of level of service (LOS) standards for state and county roads as
established by the MPO;
• Utilization of proportional fair -share requirements consistent with Florida
Statutes and the MPO model ordinance;
• Utilization of the MPO Traffic Impact Study Methodology; and
• Recognition of the MPO designation of "Constrained Facilities" as set forth in
the most current MPO Annual Level of Service Report.
7.6 All improvements associated with the public facilities identified in
Subsections 7.1 through 7.5 shall be completed prior to the issuance of any certificate of
occupancy.
7.7 Developer agrees to provide a cashier's check, a payment and performance
bond, or letter of credit in the amount of 115% of the estimated costs of the public
facilities and services, to be deposited with the City to secure construction of any new
public facilities and services required to be constructed by this Agreement. Such
construction shall be completed prior to issuance of a Certificate of Occupancy for the
Project.
SECTION 8. Required Local Government Approvals. The required local
government development approvals for development of the Property include, without
limitation, the following:
8.1 Site plan approval(s) and associated utility licenses, access, and right -of-
way utilization permits;
8.2 Construction plan approval(s);
8.3 Building permit(s);
8.4 Certificate(s) of occupancy.
SECTION 9. Finding of Consistency. The City finds that development of the
Property is consistent with the terms this Agreement is consistent with the City
Comprehensive Plan and the Code.
SECTION 10. Termination. If the Developer's obligations set forth in this
Agreement are not followed in a timely manner, as reasonably determined by the City
Manager, after notice to the Developer and an opportunity to be heard, existing permits
shall be administratively suspended and issuance of new permits suspended until the
Developer has fulfilled its obligations. Failure to timely fulfill its obligations may serve as
a basis for termination of this Agreement by the City, at the discretion of the City and after
notice to the Developer and an opportunity for the Developer to be heard.
SECTION 11. Other Terms and Conditions. Except in the case of termination,
until ten (10) years after the date of this Agreement, the City may apply laws and policies
adopted subsequently to the Effective Date of this Agreement if the City has held a public
hearing and determined:
(a) They are not in conflict with the laws and policies governing the
Agreement and do not prevent development of the land uses,
intensities, or densities in the Agreement;
(b) They are essential to the public health, safety, or welfare, and expressly
state that they shall apply to a development that is subject to a
development agreement;
(c) They are specifically anticipated and provided for in this Agreement;
(d) The City demonstrates that substantial changes have occurred in
pertinent conditions existing at the time of approval of this Agreement;
or
(e) This Agreement is based on substantially inaccurate information
provided by the Developer
SECTION 12. Compliance with Law. The failure of this Agreement to address
any particular permit, condition, term or restriction shall not relieve the Developer from
the necessity of complying with the law governing such permitting requirements,
conditions, terms or restrictions.
SECTION 13. Notices. Notices and communications required or desired to be
given under this Agreement shall be given to the parties by hand delivery, by nationally
recognized overnight courier service such as Federal Express, or by certified mail, return
receipt requested, addressed as follows (copies as provided below shall be required for
proper notice to be given):
If to the Developer: Bayway Hotel Holdings, LLC
20001 Gulf Blvd.
Suite 5
Indian Shores, FL 33785
With Copy to: E.D. Armstrong III
Hill Ward Henderson
101 E. Kennedy Blvd.
Suite 3700
Tampa, FL 33602
If to City: City of Clearwater
Attn: City Manager
112 South Osceola Avenue
Clearwater, FL 33756
Properly addressed, postage prepaid, notices or communications shall be deemed
delivered and received on the day of hand delivery, the next business day after deposit
with an overnight courier service for next day delivery, or on the third (3rd) day following
deposit in the United States mail, certified mail, return receipt requested. The parties may
change the addresses set forth above (including the addition of a mortgagee to receive
copies of all notices), by notice in accordance with this Section.
SECTION 14. Assignments.
14.1 By the Developer:
14.1.1 Prior to the Commencement Date, the Developer may sell, convey,
assign or otherwise dispose of any or all of its right, title, interest and obligations
in and to the Project, or any part thereof, only with the prior written notice to the
City, provided that such party (hereinafter referred to as the "assignee "), to the
extent of the sale, conveyance, assignment or other disposition by the Developer to
the assignee, shall be bound by the terms of this Agreement the same as the
Developer for such part of the Project as is subject to such sale, conveyance,
assignment or other disposition.
14.1.2 If the assignee of the Developer's right, title, interest and
obligations in and to the Project, or any part thereof assumes all of the Developer's
obligations hereunder for the Project, or that part subject to such sale, conveyance,
assignment or other disposition, then the Developer shall be released from all such
obligations hereunder which have been so assumed by the assignee, and the City
agrees to execute an instrument evidencing such release, which shall be in
recordable form.
14.1.3 An assignment of the Project, or any part thereof, by the Developer
to any corporation, limited partnership, limited liability company, general
partnership, or joint venture, in which the Developer (or an entity under common
control with Developer) has either the controlling interest or through a joint
venture or other arrangement shares equal management rights and maintains such
controlling interest or equal management rights shall not be deemed an assignment
or transfer subject to any restriction on or approvals of assignments or transfers
imposed by this Agreement, provided, however, that notice of such assignment
shall be given by the Developer to the City not less than thirty (30) days prior to
such assignment being effective and the assignee shall be bound by the terms of
this Agreement to the same extent as would the Developer in the absence of such
assignment.
14.1.4 No assignee, purchaser, sublessee or acquirer of all or any part of
the Developer's rights and obligations with respect to any one Parcel shall in any
way be obligated or responsible for any of the Developer's obligations with respect
to any other Parcel by virtue of this Agreement unless and until such assignee,
purchaser, sublessee or acquire has expressly assumed the Developer's such other
obligations.
14.2 Successors and Assigns. The terms herein contained shall bind and inure to
the benefit of the City, and its successors and assigns, and the Developer and, as
applicable to the parties comprising Developer, their personal representatives, trustees,
heirs, successors and assigns, except as may otherwise be specifically provided herein.
SECTION 15. Minor Non - Compliance. The Developer will not be deemed to
have failed to comply with the terms of this Agreement in the event such noncompliance,
in the judgment of the City Manager, reasonably exercised, is of a minor or
inconsequential nature.
SECTION 16. Covenant of Cooperation. The parties shall cooperate with and
deal with each other in good faith and assist each other in the performance of the
provisions of this Agreement and in achieving the completion of development of the
Property.
SECTION 17. Approvals. Whenever an approval or consent is required under or
contemplated by this Agreement such approval or consent shall not be unreasonably
withheld, delayed or conditioned. All such approvals and consents shall be requested and
granted in writing.
SECTION 18. Completion of Agreement. Upon the completion of performance
of this Agreement or its revocation or termination, a statement evidencing such
completion, revocation or termination shall be signed by the parties hereto and recorded in
the official records of the City.
SECTION 19. Entire Agreement. This Agreement (including any and all
Exhibits attached hereto all of which are a part of this Agreement to the same extent as if
such Exhibits were set forth in full in the body of this Agreement), constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof.
SECTION 20. Construction. The titles, captions and section numbers in this
Agreement are inserted for convenient reference only and do not define or limit the scope
or intent and should not be used in the interpretation of any section, subsection or
provision of this Agreement. Whenever the context requires or permits, the singular shall
include the plural, and plural shall include the singular and any reference in this
Agreement to the Developer includes the Developer's successors or assigns. This
Agreement was the production of negotiations between representatives for the City and
the Developer and the language of the Agreement should be given its plain and ordinary
meaning and should not be strictly construed against any party hereto based upon
draftsmanship. If any term or provision of this Agreement is susceptible to more than one
interpretation, one or more of which render it valid and enforceable, and one or more of
which would render it invalid or unenforceable, such term or provision shall be construed
in a manner that would render it valid and enforceable.
SECTION 21. Partial Invalidity. If any term or provision of this Agreement or
the application thereof to any person or circumstance is declared invalid or unenforceable,
the remainder of this Agreement, including any valid portion of the invalid term or
provision and the application of such invalid term or provision to circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected thereby and
shall with the remainder of this Agreement continue unmodified and in full force and
effect. Notwithstanding the foregoing, if such responsibilities of any party hereto, to the
extent that the purpose of this Agreement or the benefits sought to be received hereunder
are frustrated, such party shall have the right to terminate this Agreement upon fifteen (15)
days written notice to the other parties.
SECTION 22. Code Amendments. Subsequently adopted ordinances and codes
of the City which are of general application not governing the development of land shall
be applicable to the Property, and such modifications are specifically anticipated in this
Agreement.
SECTION 23. Governing Law. This Agreement shall be governed by, and
construed in accordance with the laws of the State of Florida.
SECTION 24. Counterparts. This Agreement may be executed in counterparts,
all of which together shall continue one and the same instrument.
SECTION 25. Amendment. This Agreement may be amended by mutual
written consent of the City and the Developer so long as the amendment meets the
requirements of the Act, applicable City ordinances, and Florida law.
[Signatures begin on following page]
IN WITNESS WHEREOF, the parties have hereto executed this Agreement the
date and year first above written.
In the Presence of:
BAYWAY HOTEL HOLDINGS, LLC, a
�.. / /1,"t._.
Print Name :175, °4 (,ix:
As to Developer
STATE OF FLORIDA
COUNTY OF PINELLAS
Stephen J. Page, Manager
The foregoing instrument was acknowledged before me this /' day of
November, 2014, by Stephen J. Page, as Manager of Bayway Hotel Holdings, LLC, a
Florida limited liability company, on behalf of the Company, who is [ ✓]personally
known to me or who has [ ] produced as
identification.
Notary Public --
Print Name: Public --1)-
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My Commission Expires:
BARBARA BICKEL
MY COMMISSION #FF132755
EXPIRES June 15, 2018
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Countersigned:
Hotel Density Reserve Development Agreement
City of Clearwater and Baywav Hotel Holdings, LLC
CITY OF CLEARWATER, FLORIDA
By:
George N. Cretekos William B. Horne II
Mayor City Manager
App oved as to m Attest:
Camilo A. Soto
Assistant City Attorney
Rosemarie CaII
City Clerk
EXHIBIT "A"
Legal Description
Units 1 -12 and 14 -17, of BEL CREST CONDOMINIUM, a Condominium, according to the
Declaration of Condominium as recorded in Official Record Book 6319, Pages 2114 and all
exhibits and amendments thereof, and recorded in Condominium Plat Book 92, Page 70, all of
the Public Records of Pinellas County, Florida. Together with an undivided share or interest in
the Common Elements appurtenant thereto.
Also known as:
Lots 25 and 26, Block A, BAYSIDE SUBDIVISION NO. 5, according to the map of plat thereof
as recorded in Plat Book 38, Page 38, Public Records of Pinellas County, Florida.
5922153v1
EXHIBIT "B"
Conceptual Site Plan
EXHIBIT "C"
COVENANT REGARDING HURRICANE EVACUATION
And DEVELOPMENT, USE AND OPERATION
DECLARATION OF COVENANTS AND RESTRICTIONS
THIS DECLARATION OF COVENANTS AND RESTRICTIONS ( "Declaration ") is
made as of the day of , 2014, by Bayway Hotel Holdings, LLC, a
Florida limited liability company ( "Developer ").
Developer is the owner of fee simple title to the real property described in Schedule 1
attached hereto and made a part hereof (hereinafter, the ( "Real Property"). The City of
Clearwater, Florida (the "City "), has amended its Comprehensive Plan to designate Clearwater
Beach as a Community Redevelopment District pursuant to the Pinellas County Planning
Council Rules in order to implement the provisions of Beach by Design, a plan for the
revitalization of Clearwater Beach.
The designation of Clearwater Beach as a Community Redevelopment District (the
"Designation ") provides for the allocation of Hotel Density Reserve Units as an incentive for the
development of mid -size quality hotels. Pursuant to the Designation, the allocation of Hotel
Density Reserve Units is subject to compliance with a series of performance standards, including
a requirement that resorts containing a hotel developed with Hotel Density Reserve Units shall
be closed and all Guests evacuated from such hotels as soon as practicable after the National
Hurricane Center posts a hurricane watch that includes Clearwater Beach. The purpose of such
evacuation is to ensure that such a hotel is evacuated in advance of the period of time when a
hurricane evacuation would be expected in advance of the approach of hurricane force winds.
The City has granted, by City Council Resolution , passed and approved on
, 2014, Developer's application for Hotel Density Reserve Units pursuant to the
Designation, subject to Developer's compliance with the requirements of the Designation.
Developer desires for itself, and its successors and assigns, as owner, to establish certain rights,
duties, obligations and responsibilities with respect to the use and operation of the Real Property
in accordance with the terms and conditions of the allocation of the Hotel Density Reserve Units
to the City and the Designation, which rights, duties, obligations and responsibilities shall be
binding on any and all successors and assigns and will run with the title to the Real Property.
THEREFORE, in consideration of the covenants and restrictions herein set forth and to
be observed and performed, and in further consideration of the allocation of Hotel Density
Reserve Units to Developer, and other good and valuable consideration, the sufficiency of which
is hereby acknowledged, Developer hereby declares, covenants and agrees as follows:
1. Benefit and Enforcement. These covenants and restrictions are made for the
benefit of Developer and its successors and assigns and shall be enforceable by them and also for
the benefit of the residents of the City and shall be enforceable on behalf of said residents by the
City Council of the City.
2. Covenant of Development, Use and Operation. Developer hereby covenants and
agrees to the development, use and operation of the Real Property in accordance with the
provisions of this Declaration.
2.1 Use. The use of the resort on the Real Property is restricted as follows:
2.1.1 Fifteen (15) units, which is the number of hotel units allocated to
Developer from the Hotel Density Reserve, shall be used solely for transient
occupancy of one month or thirty (30) consecutive days or less, must be licensed
as a public lodging establishment and classified as a hotel, and must be operated
by a single licensed operator of the hotel. All other units shall be licensed as a
public lodging establishment. No unit shall be used as a primary or permanent
residence. Access to overnight accommodation units must be provided through a
lobby and internal corridor. A reservation system shall be required as an integral
part of the hotel use and there shall be a lobby /front desk area that must be
operated as a typical lobby /front desk area for a hotel would be operated. All
hotel units shall be required to be submitted to a rental program requiring all hotel
units to be available for members of the public as overnight hotel guests on a
transient basis at all times. No unit shall have a complete kitchen facility as that
term is used in the definition of "dwelling unit" in the Code. Developer shall
make available for inspection to authorized representatives of the City its books
and records pertaining to each Hotel Density Reserve unit upon reasonable notice
to confirm compliance with these regulations as allowed by general law. The
Developer agrees to comply with the Design Guidelines as set forth in Section
VII. of Beach by Design.
2.1.2 As used herein, the terms "transient occupancy," "public lodging
establishment," "hotel ", and "operator" shall have the meaning given to such
terms in Florida Statutes Chapter 509, Part I.
2.2 Closure of Improvements and Evacuation. The Hotel developed on the Real
Property shall be closed as soon as practicable upon the issuance of a hurricane watch by the
National Hurricane Center, which hurricane watch includes Clearwater Beach, and all Hotel
guests, visitors and employees other than emergency and security personnel required to protect
the hotel, shall be evacuated from the Hotel as soon as practicable following the issuance of said
hurricane watch. In the event that the National Hurricane Center shall modify the terminology
employed to warn of the approach of hurricane force winds, the closure and evacuation
provisions of this Declaration shall be governed by the level of warning employed by the
National Hurricane Center which precedes the issuance of a forecast of probable landfall in order
to ensure that the guests, visitors and employees will be evacuated in advance of the issuance of
a forecast of probable landfall.
3 Effective Date. This Declaration shall become effective upon issuance of all
building permits required to build the project ( "Project ") and Developer's commencement of
construction of the Project, as evidence by a Notice of Commencement for the Project. This
Declaration shall expire and terminate automatically if and when the allocation of Reserve Units
to the Developer expires or is terminated.
4 Governing Law. This Declaration shall be construed in accordance with and
governed by the laws of the State of Florida.
5 Recording. This Declaration shall be recorded in the chain of title of the Real
Property with the Clerk of the Courts of Pinellas County, Florida.
6 Attorneys' Fees. Developer shall reimburse the City for any expenses, including
reasonable attorneys' fees, which are incurred by the City in the event that the City determines
that it is necessary and appropriate to seek judicial enforcement of this Declaration and the City
obtains relief, whether by agreement of the parties or through order of a court of competent
jurisdiction.
7 Severability. If any provision, or part thereof, of this Declaration or the
application of this Declaration to any person or circumstance will be or is declared to any extent
to be invalid or unenforceable, the remainder of this Declaration, or the application of such
provision or portion thereof to any person or circumstance, shall not be affected thereby, and
each and every other provision of this Declaration shall be valid and enforceable to the fullest
extent permitted by law.
[Signatures begin on following page]
IN WITNESS WHEREOF, Developer has caused this Declaration to be executed this
day of ,2014.
In the Presence of: BAYWAY HOTEL HOLDINGS, LLC, a
Florida limited liability company
By:
Print Name Stephen J. Page, Manager
Print Name
As to Developer
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
, 2014, by Stephen J. Page, as Manager of Bayway Hotel Holdings, LLC, a
Florida limited liability company, on behalf of the Company, who is [ ] personally known to
me or who has [ ] produced as identification.
Notary Public
Print Name:
My Commission Expires:
HOTEL DENSITY RESERVE DEVELOPMENT AGREEMENT
CITY OF CLEARWATER and BAYWAY HOTEL HOLDINGS, LLC
CITY OF CLEARWATER, FLORIDA
By:
William B. Horne II
City Manager
Attest:
Rosemarie Call, City Clerk
Countersigned:
George N. Cretekos, Mayor
Approved as to Form:
Camilo Soto
Assistant City Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
November, 2014, by GEORGE N. CRETEKOS, as Mayor of the City of Clearwater,
Florida, who is [ ] personally known to me or has [ ] produced
as identification.
Notary Public
Print Name:
My Commission Expires:
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
November, 2014, by WILLIAM B. HORNE, II, as City Manager of the City of
Clearwater, Florida, who is [ ] personally known to me or who has [ ] produced
as identification.
Notary Public
Print Name:
EXHIBIT "D"
COVENANT OF UNIFIED USE
PLEASE RETURN RECORDED DOCUMENT TO:
COVENANT OF UNIFIED USE
THIS COVENANT OF UNIFIED USE (the "Covenant ") is executed this day of
, 2014, by Bayway Hotel Holdings, LLC, a Florida limited liability company
( "Developer ").
WITNESSETH:
WHEREAS, Developer is the owner of the real property legally described on Schedule
"A" attached hereto and incorporated herein by reference (the "Real Property "); and
WHEREAS, Developer and the City of Clearwater, Florida (the "City ") are parties to that
certain Hotel Density Reserve Development Agreement dated , 2014 (the
"Agreement "), pursuant to which the City has agreed that Developer may develop and construct
upon the Real Property a hotel project as described in the Agreement (the "Project "); and
WHEREAS, Developer intends to develop and operate the Real Property for a unified
use, as more particularly described in this Covenant.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Developer does hereby agree that, effective as of the date on which Developer receives all
permits required to construct the Project and Developer commences construction thereof, as
evidenced by a Notice of Commencement for the Project, the Real Property shall be developed
and operated as a limited - service hotel project, as described in the Agreement. The restrictions
set forth in the preceding sentence shall expire automatically when and if Developer's allocation
of additional hotel units (as defined in the Agreement) expires or is terminated. Nothing in this
Agreement shall require Developer to develop the Project or restrict Developer's ability to sell,
assign, transfer or otherwise convey its right in and to the Real Property or any portion or
portions thereof to unrelated third - parties. Developer agrees that the City shall have the right to
enforce the terms and conditions of this Agreement.
Notwithstanding the foregoing, all Hotel Units may be operated by a single hotel
operator.
[GM 14- 1420 - 167/156832/1 ]
IN WITNESS WHEREOF, Developer has caused this Covenant to be executed this
day of ,2014.
In the Presence of: BAYWAY HOTEL HOLDINGS, LLC, a
Florida limited liability company
By:
Print Name Stephen J. Page, Manager
Print Name
As to Developer
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
, 2014, by Stephen J. Page, as Manager of Bayway Hotel Holdings, LLC, a
Florida limited liability company, on behalf of the Company, who is [ ] personally known to
me or who has [ ] produced as identification.
Notary Public
Print Name:
My Commission Expires:
[GM14- 1420- 167/156832/1)
CITY OF CLEARWATER, FLORIDA
By:
William B. Horne II,
City Manager
Attest:
Rosemarie Call, City Clerk
Countersigned:
George N. Cretekos, Mayor
Approved as to Form:
Camilo Soto
Assistant City Attorney
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
, 2014, by GEORGE N. CRETEKOS, as Mayor of the City of Clearwater,
Florida, who is [ 1 personally known to me or has [ ] produced
as identification.
Notary Public
Print Name:
My Commission Expires:
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this day of
, 2014, by WILLIAM B. HORNE, II, as City Manager of the City of
Clearwater, Florida, who is [ ] personally known to me or who has [ ] produced
as identification.
Notary Public
Print Name:
My Commission Expires:
5921786v1